Our Latest Pro-Bono Foreclosure Case

Being a trial lawyer, like everything else in life, has a spiritual side. The way in which my path crossed with certain staff members’, learning a key lesson from one noncritical situation, that we can then effortlessly apply to a nearly instantaneously, subsequent critical situation, are just two examples of what I consider the spiritual side of practicing law.  Other examples occur regularly during trials, when a lawyer is required to make split second decisions, many of which can win or lose the case.  You don’t always have the time to fully analyze the particulars and once the decision is made and action taken, there are almost always no do overs.  For example, when to lodge a proper objection is only partly based on knowledge of the law.  There are times the question is legally objectionable but you hold back because you know the answer will help your case.  Other times, the opposing lawyer might be on a roll and while an objection might be proper, the time to raise it has not yet come to pass. In those instances, a slightly premature objection might be in order.  These situations require you to know the law to make the best possible decision but there is also often a gut feel that you at least have to pay attention to before acting. This is all happening within a matter of a second or two, at most, as the window of time to properly object to any given question is narrow.

During trial, the best lawyers are often balancing between being too aggressive, which can result in turning off the judge or jury, and with not being aggressive enough, which can result in not preserving an issue for appeal or not delivering that one powerful point that turns the judge or jury their way.  This process demands razor focus, keen observation and intuition of everything going on in the courtroom, including macro and micro-facial expression, as well as body language recognition.  You can’t just rely on your mind.  There’s just not enough time to whip out a cerebral chalkboard and weigh the pros and cons of your options.  This is no different than any other profession which requires quick action with little opportunity to go back and fix a mistake. Knowing whether or not you have the legal grounds to object or take a certain course of action in trial comes with years of hard work and experience but the law is not the only factor in making certain key decisions.  Put another way, while knowing the law and being extremely experienced is a prerequisite to effective trial advocacy, much more is required to be as effective as possible.

In addition to being extremely experienced and knowledgeable, being open to guidance from your gut and spiritual “coincidences,” there is something else, the “X” factor.  The best trial lawyers are thoughtful, organized, generally happy, and well-rounded people.  They are almost singularly focused on using their natural/G-d given talents to serve others in a meaningful way.  This has been my focus for as long as I can remember.  My father never vocalized a service first philosophy but he lived it and I believe I learned this by watching him.  As a personal injury and workers’ compensation lawyer, sure he got excited when he got a great result in a case which resulted in a big pay day but while signing up a case, preparing for trial and while actually handling it, there was only one thing he concerned himself with, how to best serve his clients, period.  Money was of little, if any consequence and the several times he nearly bankrupted his firm to best serve a client was evidence of how steadfast he was in this belief.

In our office, the focus is the same.  We problem solve every situation by asking, how would we want this handled if it was our house.  Under that paradigm, answers to problems come fast and easy.  No time, resource or effort is spared.  We put it all on the line for our clients.  For us, focusing solely on winning or losing, or on making money, just won’t cut it.  I’ve seen brilliant lawyers whose heart is just not in the right place and while they may make some money, it’s rarely lasting and they are rarely content.  No one in our office is perfect but all of us have our hearts in the right place.  Passion for our cause and for serving our clients is what we demand.  If you don’t at least have those qualities, you won’t make it at the Law Offices of Evan M. Rosen, P.A.  Along these lines, in an effort to serve others in a meaningful way, opportunities to represent others on a pro-bono basis, have presented themselves to us and we have taken on the great majority of them.

Recently, while waiting for an order to be signed in another matter, I jumped into a case, pro-bono.  I’m watching Judge Stone, the former Chief Justice of the 4th District Court of Appeal, display his usual, unparalleled judicial temperament and patience listening intently to an unrepresented defendant, in a wheelchair, explaining one of the saddest stories I’ve heard.  Something comes over me.  It reminds me of the gut feelings I often get in trial, only this was stronger.  It is as if someone simultaneously kicks me out of the chair, while grabbing me up by my armpits.  “Judge,” I say, surprised that I am now standing up and talking to the Court in the middle of someone else’s trial, “If I may interrupt briefly here?  I would like to offer my services to these defendants, pro bono, and ask for a brief recess to speak with them to see if they’ll agree and if so, to review the exhibits and proposed final judgment prior to proceeding.”  I stare directly into the eyes of the Plaintiff’s lawyer and say nicely, “does anyone have any objections to this?”  I see the bank’s lawyer is upset.  She’s dying to voice her objection but she’s a good lawyer, with plenty of X factor.  She knows she’ll be way outside the range of reasonable behavior if she objects.   Before she gets a chance to verbalize a response, the Judge says almost immediately, “I have no objection; I welcome it!”

I speak with my new potential clients and prepare a Notice of Appearance.  The Judge starts another trial.  Off in a corner of the courtroom, I take some time to carefully review the exhibits, proposed judgment and the complaint.  In summary, it is a 2014 case.  Unfortunately, the defendants, father and daughter owners of a Broward home, have fallen on very hard times.  The worst of what one would expect – family illnesses and deaths as well as job losses.  The clients never filed an answer and were “defaulted,” which legally has the effect of admitting all well pled allegations.  In other words, they have admitted everything the Plaintiff alleged, and are bound by those admissions.  The only thing they didn’t legally admit are un-liquidated damages. , i.e. those damages which are not a definite sum and which require evidence to prove.  The specific amount of principal due was pled in the complaint, as was deferred interest, based on an attached loan mod agreement.  Arguably, the only non-liquidated amounts were about $6,000 in interest since the failed mod, $1,100 in attorney’s fees and some other minimal costs.

There were four servicers that collected payments during the life of this loan, with Greentree just getting in this year.   I’m weighing my options.  I have a shot at keeping out the $7-8,000 in unliquidated damages from the judgment, if I’m successful on my voir dire and cross of the witness on these issues.  However, that’s a long shot because I’ve dealt with this issue in front of this judge and I’ve seen how he’s ruled on it.  Also, I’m very concerned that once I start hammering the Plaintiff’s witness, they might withdraw the five month extended sale date they offered.  The last tidbit weighing on me is that, the Plaintiff’s attorney and her Greentree witness admitted, on their own, that last night, while preparing for trial, they caught a $10.10 interest calculation error in the borrowers’ favor.  They hand wrote the adjustment to interest and to the total on their form judgment in the morning, before the trial started. That was commendable, not everyone does little things like that, and the Judge had already heard about it.

So I’m feeling concerned that my clients’ best case scenario, with the default, is them walking out of court owing $147,000 instead of $155,000 with the possibility of a sale date in 20-35 days instead of 150 days.  I knew in my gut immediately what I would recommend doing.

I explain this to my clients and they agree.   Saving the $7-8,000 is not certain and doesn’t solve their problems anyway.  The risk of having to vacate in a little more than 20-35 days is high.  On the other hand, locking up five more months to explore their options is a bird in the hand.  The Plaintiff’s attorney and her witness also expressed their eagerness to work with my clients towards a loan mod to give them one more shot to save their home.  They had worked out a mod before at $450 per month.  If they can get that deal together again, the clients should be fine.  The bank’s witness at one point leans down and gives my client a big hug, saying, “I want to help you.  I hope everything works out for you and your family.”

While we didn’t “win” at trial, this was a very uplifting experience and was well received by the Judge and the court staff.  Since I solicited this client, I can never ask them for a dime, not that I would anyway, no matter what work I do for them.  Serving others, with no expectation of anything in return, is a wonderful experience.  I cannot recommend it enough.

That being said, our office’s talents are best used serving others to win at trial, to help fight back against banks and to help, one case at time, keep financial institutions accountable! The legislative and executive branches have completely failed us in this regard.  So, please even if you can’t afford it, find a thoughtful, organized, happy, well-rounded, spiritually in-tune, extremely knowledgeable and experienced foreclosure defense trial lawyer and do all that you can to preserve your defenses.  In certain circumstances, our firm will take cases on a pure contingency basis, with no fees owed unless the bank is ordered to pay them.  The clients mentioned in this blog post were defaulted.  Issues on which we could have won were lost in a procedural black hole, vacuumed out of our arsenal.  While we may have helped them get another 5 months in their home or more, if they are able to work out a loan modification; with properly pled defenses, we might have won at trial and helped them stay in their home indefinitely.

Those of you in South Florida reading this, who have not been defaulted and can document being turned away from another lawyer because you couldn’t afford to pay them, please call our office, maybe we can serve you, in a pro-bono/contingency fee arrangement, in which our fees will be paid by the bank if we are successful in getting your case dismissed! If we lose, we get no money for fees or costs.  Anyone else not in South Florida, we are helping serve others at trial and all stages of foreclosure cases throughout the state but due to the costs and extra time travel requires, we cannot take out-of-the-area cases on a pro-bono/contingency fee basis.

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If you are in Florida and are looking for help with debt, foreclosure, real estate or want more information about bankruptcy law, call us at (855) 55-ROSEN or fill out our online form for a FREE CONSULTATION. Let the lawyers and staff at The Law Offices of Evan M. Rosen serve you!